SMCV 322-16
James F. Matthews, J.

Upon the following papers numbered 1 to 24 read on this motion by defendant for an order of dismissal pursuant to CPLR 3126 for non-compliance with interrogatories and combined discovery demands or an order striking plaintiff’s Notice of Trial and an order compelling plaintiff’s response to discovery demands pursuant to CPLR 3124, and an order compelling an EBT of plaintiff’s owner by a date certain ; by Notice of Motion/Order to Show Cause and supporting papers 1-4, 19 ; Notice of Cross Motion and supporting papers 20-22 ; Answering Affidavits and supporting papers 20-22 ; Replying Affidavits and supporting papers 23,24 ; Filed papers ; Other exhibits: 5-18 ; (and after hearing counsel in support of and opposed to the motion),

it is,

ORDERED that the motion by defendant, seeking an order vacating plaintiff’s Notice of Trial and striking the action from the Trial Calendar, pursuant to 22 NYCRR §208.17^[FN1] and dismissing plaintiff’s complaint pursuant to CPLR 3126 on the ground that plaintiff has failed to comply with defendant’s interrogatories and combined discovery demands, is denied, conditioned upon plaintiff providing specific and meaningful responses (see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]; CPLR 3124) to all of the prior discovery and inspection demands of defendant served on 06/24/16, to the extent plaintiff has not complied, including the Combined Demands pursuant to CPLR 3120, Notice of Examination Before Trial pursuant to CPLR 3101 and 3107, Notice for Discovery and Inspection, Request for Expert Discovery, and Demand for Verified [*2]Written Interrogatories, within 30 days of the date of service of this Order by the Court; and it is further conditioned upon plaintiff providing, in particular, a clear copy of the following documents requested in defendant’s motion: management agreements, lease agreements, tax returns^[FN2] and bank records, as per defendant’s written demands. The Court finds there are special circumstances which warrant disclosure of plaintiff’s corporate income tax returns (see CPLR 3101; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A][App Term, 2nd & 11th Jud Dists, 2008]). Defendant’s request in its motion for “corporate records” and “other tax records” is denied, as being vague, broad and ambiguous, making compliance impossible; and it is further conditioned upon plaintiff, by an officer, director, member, agent or employee having the information (see CPLR 3133[b]), serving on defendant a meaningful written answer under oath, or a meaningful objection under oath stating the reasons for the objection, with reasonable particularity (see CPLR 3133[a]), to the extent plaintiff has not complied, to each interrogatory previously served upon it, with each question answered separately and fully and with each answer preceded by the question to which it responds, within 30 days of the date of service of this Order by the Court (see CPLR 3133[b]). In the view of the Court, plaintiff has failed to timely object to defendant’s interrogatories “with reasonable particularity the reasons for each objection” (see CPLR 3122[a]).

The Clerk of the Court is directed to adjourn the Notice of Trial to a date at least 90 days beyond the date this order is mailed to the parties.

The Court notes that plaintiff provided responsive papers dated 07/05/16 to defendant’s discovery demands of 06/24/16, belatedly on 11/01/16^[FN3] , which responses were rejected by defendant on 11/02/16 as being insufficient and unresponsive in a material way. The discovery demands are grounded in plaintiff’s complaint which seeks recovery of first-party no-fault benefits for medical services rendered to plaintiff’s assignor on 08/20/15 in the total amount of $5,200.00, as the result of an automobile accident of 07/02/15; and it is further

ORDERED that defendant’s alternative motion pursuant to CPLR 3124, seeking to compel plaintiff’s owner to appear for an examination before trial (“EBT”) at a date certain, is granted, to the extent that plaintiff corporation shall appear at an examination before trial (“EBT”) through a person chosen by plaintiff, who is knowledgeable of the facts and circumstances of all aspects of this matter as alleged in the verified complaint (see Sladowski-Casolaro v World Championship Wrestling, Inc., 47 AD3d 803 [2nd Dept 2008]), and is prepared to testify under oath, at a date, time and place certain set by defendant, convenient to plaintiff, within 30 days of the date of receipt of this order, with any adjournments only upon consent of the attorneys for the parties, but in no event beyond 45 days of the date of receipt of [*3]this order; and it is further

ORDERED that in the event of plaintiff’s failure to comply with this Order, plaintiff shall be precluded from offering into evidence at the trial of this action, any documents or testimony that were called for in defendant’s discovery demands, to which meaningful responses have not been timely served, pursuant to CPLR 3126(2) and (3), in addition to any other reasonable remedies requested by defendant which the Court deems appropriate; and it is further

ORDERED that plaintiff’s cross-motion for a protective order pursuant to CPLR 3103, is denied. Plaintiff failed to object by filing a motion for a protective order within 20 days of receipt of defendant’s demands and the untimely request must be denied (see CPLR 3122[a]; Hunt v Odd Job Training, 44 AD3d 714 [2nd Dept 2007]). Where a plaintiff has failed to timely object to the propriety of discovery, “plaintiff is obligated to produce the information sought, except as to matters which are palpably improper or privileged” (see New Era Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 134[A][App Term, 9th & 10th Jud Dists 2009]; see also Fausto v City of New York, 17 AD3d 520 [2nd Dept 2005]). Where discovery demands concern matters which defendant is precluded from raising, “they are palpably improper notwithstanding the fact that plaintiff did not timely object thereto” (see New Era Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., supra; A.B. Medical Services v Utica Mutual Ins. Co., 11 Misc 3d 71 [App Term, 2nd Dept 2006]).

However, where, as here, a defendant seeks discovery to support its defense that plaintiff is ineligible to recover no-fault benefits because it is a fraudulently incorporated professional service corporation (see State Farm Mut. Auto Ins. Co. v Mallela, 4 NY3d 313 [2005]), the defense is not precluded (see New Era Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., supra).

Moreover, contrary to plaintiff’s contentions, the Court finds that defendant set forth detailed and specific reasons supporting the possible fraudulent incorporation of a professional service corporation by plaintiff, which if true, would preclude plaintiff from recovering no-fault benefits under the law, thereby demonstrating defendant’s requests for discovery were both material and necessary to the defense of the within actions (see A.B. Medical Services v Utica Mutual Ins. Co., supra; see also Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., supra). This was provided by the affidavit of David Brooks, Case Manager of the Special Investigative Unit of defendant insurance company (“SIU Investigator”), which was charged with investigating, detecting and combating fraud, including medical care provider fraud, pursuant to Insurance Law §409. His affidavit stems from his investigation, which established a good faith basis for defendant’s allegation that plaintiff may be involved in no-fault based fraudulent activities and provided a sufficient foundation for defendant’s discovery requests concerning the manner of plaintiff’s ownership, operation and control of its professional corporation (see New Era Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., supra).

As such, discovery seeking a copy of the contract with a management company and a copy of the lease, is not palpably improper, as plaintiff has not demonstrated the information is privileged. Therefore, defendant is entitled to production of the documents and related information (Id.).

Furthermore, the Court finds that so much of defendant’s discovery requests which seek information regarding whether plaintiff was fraudulently incorporated, are material and necessary (see Midwood Acupuncture, P.C. v State Farm Mut. Auto Ins. Co., 14 Misc 3d 131[A][App Term, 2nd & 11th Jud Dists 2007]), and must be provided pursuant to defendant’s pertinent [*4]discovery demands.

In addition, plaintiff contends defendant’s verified answer fails to plead affirmative defenses relating to fraudulent incorporation with any type of specificity or particularity, or that facts may exist concerning whether plaintiff is properly incorporated, thereby waiving the defenses and making discovery unnecessary.

The Court finds that a review of defendant’s affirmative defenses 1, 19, 20, 23, 25 and 27, provides sufficient support for the potential merit of defendant’s defense of fraudulent incorporation, making plaintiff ineligible to recover no-fault benefits and making discovery material and necessary (see CPLR 3101[d]; Radiology Today, P.C. v GEICO, 32 Misc 3d 4 [App Term, 2nd Dept 2011]). It is well settled that “fraudulently incorporated medical corporations are not entitled to reimbursement of no-fault benefits and such defense is non-waivable and may be asserted any time (emphasis added)” (see Park Avenue Medical Care, P.C. v GEICO, 35 Misc 3d 1237[A][D Ct, Suffolk Cty 2012]; see also State Farm Mut. Auto Ins. Co. v Mallela, supra at 320; Midwood Acupuncture, P.C. v State Farm Mut. Auto Ins. Co., supra).

Moreover, “there is no requirement that a defense predicated upon the failure to comply with ‘New York State or local licensing requirement[s]’ (Insurance Department Regulations 11 NYCRR §65-3.16[a][12]), be pleaded with particularity pursuant to CPLR 3016[b]” (see Radiology Today, P.C. v GEICO, supra at 7).

The failure to state a Mallela type defense “with particularity in the answer does not preclude the defendant from seeking pre-trial disclosure related thereto” (see Park Avenue Medical Care, P.C. v GEICO, supra at *1). A Mallela defense is not subject to preclusion (see Lexington Acupuncture, P.C. v State Farm Mut. Auto Ins. Co., 12 Misc 3d 90.92[App Term, 2nd & 11th Jud Dists 2006]).

Furthermore, where a plaintiff health care provider fails to abide by relevant licensing laws, the corporation lacks standing to bring actions for recovery of assigned first-party no-fault benefits (see Quality Medical Care, P.C. v New York Cent. Mut. Fire Ins. Co., 26 Misc 3d 139[A][App Term, 2nd, 11th & 13th Jud Dists 2010]). Here, since defendant has asserted affirmative defenses in its answer challenging the standing of plaintiff, defendant is entitled to Mallela discovery (see Lexington Acupuncture, P.C. v General Assur. Co., 35 Misc 3d 42 [App Term, 2nd, 11th & 13th Jud Dists 2012]); and it is further

ORDERED that plaintiff’s cross-motion seeking, in the alternative, to compel defendant to produce its SIU Investigator and any claims representative who was responsible for denying the instant claim and/or referring the matter to SIU for deposition, is denied. Defendant has timely objected to this relief within 20 days of receipt of plaintiff’s demand (see CPLR 3122[a]).

The attorneys for plaintiff filed a Notice of Trial and a Certificate of Readiness for Trial dated 12/22/16, which was received by the Court on 01/02/17. Plaintiff’s attorneys stated to the Court in the Certificate of Readiness for Trial, that “discovery proceedings now known to be necessary completed” and “there are no outstanding requests for discovery,” which statements were certified pursuant to 22 NYCRR §130-1, and further stated that the Notice of Trial was “not frivolous.” The Court is holding plaintiff to its filed statements, and the EBT request is denied, accordingly.

The foregoing constitutes the decision and order of this Court.

Dated: July 24, 2017

Footnotes

Footnote 1: The proper section for seeking an order striking plaintiff’s Notice of Trial in District Court is 22 NYCRR §212.17.

Footnote 2: Discovery of Corporate tax returns are permissible where special circumstances are shown (see CPLR 3101[a]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A][2nd & 11th Jud Dists 2008]). However, personal Federal and State Income tax returns of owner are not discoverable, “in the absence of a strong showing that the information is indispensable to the claim and cannot be obtained from other sources” (see Altidor v State-Farm ins. Co., 22 AD3d 435 [2nd Dept 2005]).

Footnote 3: Plaintiff’s papers were approximately four and a half months late and were therefore untimely (see CPLR 3122[a]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 122 [App Term, 2nd & 11th Jud Dists 2006]).

Decided on July 21, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Gullo & Associates, LLP ( Natalie Socorro, Esq.), for appellant. The Rybak Firm, PLLC ( Damin J. Toell, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered April 11, 2014. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion which sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

In support of its motion, defendant established that, before receiving the claims at issue, it had mailed letters scheduling an initial and follow-up IME to plaintiff’s assignor (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also established that the assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Thus, defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage (id. at 722). As defendant’s moving papers established that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claims on that ground, and plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, defendant was entitled to summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on July 21, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Nightingale Law, P.C. (Michael S. Nightingale, Esq.), for appellant. The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered August 4, 2014. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion which sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

In support of its motion, defendant established that, before receiving the claims at issue, it had mailed letters scheduling an initial and follow-up IME to the assignor (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also established that the assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Defendant further demonstrated that, upon receipt of the claims, it had timely denied the claims at issue based upon the assignor’s failure to appear for IMEs (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). An assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on July 21, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Law Offices of Aloy O. Ibuzor (Miriam Granov, Esq.), for appellant. The Odierno Law Firm, P.C. (Paul A. Bargellini, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered June 26, 2014. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the action is premature due to plaintiff’s failure to provide requested verification. The Civil Court denied defendant’s motion but, in effect, limited the issues for trial, pursuant to CPLR 3212 (g), to whether plaintiff properly responded to defendant’s verification requests. As limited by its brief, defendant appeals from so much of the order as denied its motion.

Defendant’s moving papers demonstrated, prima facie, that it had not received the requested verification. In opposition to the motion, plaintiff did not show that the requested verification had been provided to defendant prior to the commencement of the action. In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed, and defendant’s motion for summary judgment dismissing the complaint on the ground that the action is premature is granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Offices of Emilia I. Rutigliano, P.C. (Marina Josovich, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered July 15, 2014. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the action was premature because defendant had timely and properly requested verification and the verification had not been provided to defendant. Insofar as is relevant to this appeal, the Civil Court denied defendant’s cross motion and found that the only remaining issue for trial was whether defendant had received the verification it had requested.

As defendant demonstrated that it had not received the requested verification, and plaintiff did not show that the verification had been provided to defendant prior to the commencement of the action, the 30-day period within which defendant was required to pay or deny the claims did not begin to run (see 11 NYCRR 65-3.5 [c]; 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; D & R Med. Supply v American Tr. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d, 11th & 13th Jud Dists 2011]) and, thus, plaintiff’s action is premature.

In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed, and [*2]defendant’s cross motion for summary judgment dismissing the complaint is granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on July 21, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Kopelevich & Feldsherova, P.C. (Galina Feldsherova, Esq.), for appellant. Law Office of Nancy Linden, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered May 14, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, alleging that the claims at issue had been timely and properly denied on the ground that plaintiff’s assignor had failed to appear at duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion. By order entered May 14, 2014, the Civil Court granted defendant’s motion.

In support of its motion, defendant failed to establish that the initial and follow-up EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant failed to demonstrate that the EUOs had been properly scheduled and, thus, that plaintiff’s assignor had failed to appear at duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]). Consequently, defendant is not entitled to summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered May 16, 2014. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment upon the first, second and fifth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first, second, and fifth through eighth causes of action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Insofar as is relevant to this appeal, defendant cross-moved for summary judgment dismissing the first, second and fifth causes of action on the ground that these causes of action sought to recover upon the unpaid portions of the underlying claims, which amounts exceeded the amounts permitted by the workers’ compensation fee schedule. Defendant also sought summary judgment dismissing the sixth through eighth causes of action on the ground of lack of medical necessity. By order entered May 16, 2014, insofar as is relevant to this appeal, the Civil Court denied the branches of plaintiff’s motion seeking summary judgment upon the first, second and fifth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first, second, and fifth through eighth causes of action.

In support of the branches of its cross motion seeking summary judgment dismissing the sixth through eighth causes of action, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the services at issue. In opposition to those branches of defendant’s cross motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App [*2]Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Contrary to plaintiff’s contention, the affidavit executed by defendant’s expert professional coder, submitted in support of the branches of defendant’s cross motion seeking summary judgment dismissing the first, second and fifth causes of action, established that defendant had properly used the workers’ compensation fee schedule to determine the amount which plaintiff was entitled to receive for the services at issue in these causes of action (see e.g. Sama Physical Therapy, P.C. v American Tr. Ins. Co., 53 Misc 3d 129[A], 2016 NY Slip Op 51359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Accordingly, the order, insofar as appealed from, is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on July 21, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Miller, Leiby & Associates, P.C. (Stacia Ury, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered April 24, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claim at issue based upon the assignor’s failure to appear for duly scheduled independent medical examinations. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Contrary to plaintiff’s sole argument on appeal with respect to defendant’s cross motion, defendant’s submissions were sufficient to give rise to a presumption that the denial of claim forms had been timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Gullo & Associates, LLP (Cristina Carollo, Esq.), for appellant. Gary Tsirelman, P.C. (Daria Klein, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered February 28, 2014. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

Contrary to defendant’s contention, the Civil Court properly held that defendant had failed to establish the timely and proper mailing of the independent medical examination (IME) scheduling letters. Defendant’s moving papers stated that IME scheduling letters are sent to the address the assignor puts on the NF-2 form or to the address which is provided by the assignor’s counsel. While defendant further stated that a copy of the NF-10 denial of claim form is sent to the plaintiff’s assignor, the address to which the IME scheduling letter was sent was “East 107th St,” while the NF-10 form stated that the assignor resided on “East 106th St.” A presumption of receipt arises only where there is proof of a proper mailing (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Infinity Health Prods., Ltd. v Redland Ins. Co., 39 Misc 3d 140[A], 2013 NY Slip Op 50751[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). To the extent that copies of the IME scheduling letters were sent to an attorney, there is nothing in the record to suggest that plaintiff’s assignor was represented by that attorney. Consequently, defendant’s moving papers failed to demonstrate that the IMEs had been properly scheduled (see Great Health Care Chiropractic, P.C. v Citiwide Auto Leasing, 43 Misc 3d 127[A], 2014 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Infinity Health Prods., Ltd., 39 Misc 3d 140[A], 2013 NY Slip Op 50751[U]; cf. Star Med. [*2]Servs., P.C. v Allstate Ins. Co., 11 Misc 3d 131[A], 2006 NY Slip Op 50344[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]) and, thus, that it is entitled to summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on July 21, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Law Offices of Emilia I. Rutigliano, P.C. (Marina Josovich, Esq.), for appellant. The Law Office of Printz & Goldstein (Megan C. Dimiceli-Glaser, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered May 1, 2014. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint.

The proof submitted by defendant in support of its cross motion for summary judgment dismissing the complaint did not establish as a matter of law its proffered defense that plaintiff’s assignor’s injuries did not arise from a covered incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). Consequently, defendant’s cross motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]; see also A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52383[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.